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In the Courts: NE-A (Nigeria) v SS Home Department [2017] EWCA Civ 239

Written by
Sarah Jane Ewart, UK Human Rights Blog
Date of Publication:
24 April 2017

The Facts:

NE-A, a Nigerian national, has been resident in the UK since 2006. He was convicted of aggravated burglary and sentenced to six years imprisonment. Evidence was given in the First Tier Tribunal that he suffers from a schizoaffective disorder, and would relapse if deprived of his current medication. He also relies heavily on the support of his twin brother.

The Statute:

This case concerns the proper construction of s.117C(6) of the Nationality, Immigration and Asylum Act 2002 ("the 2002 Act"). This section provides that where a foreign criminal has been sentenced to a period of imprisonment of at least four years, deportation is always in the public interest save for the existence of 'very compelling circumstances'. The statute stipulates that these circumstances must exceed the ordinary: having lived in the UK all one's life or having a genuine and subsisting relationship with a partner residing here will not be enough. This section must be considered where a court or tribunal is considering whether the decision to deport will be contrary to s.6 of the Human Rights Act, and assessing the effect on article 8 rights.

The Case Law:

Sales LJ said obiter in Rhuppiah v SS Home Department [2016] EWCA Civ 803 that in this provision Parliament has codified a specific approach to the deportation of foreign criminals, and it is not within the discretion of the court or tribunal to find that deportation is not in the public interest. This is subject to the "safety valve" of the 'very compelling circumstances' test, "with an appropriately high threshold of application, for those exceptional cases involving foreign criminals in which the private and family life considerations are so strong that it would be disproportionate and in violation of Article 8 to remove them" [para 50].

It was submitted for the appellant in the present case that this obiter analysis was wrong, and that in fact the stipulation here is a relevant consideration rather than a binding procedure. This submission was based largely on the Supreme Court judgment in Hesham Ali [2016] UKSC 60, a case that was heard just before the enactment of the Immigration Act 2014, and so dealt specifically with the Immigration Rules rather than the statute. Although that appeal was dismissed in favour of the Home Department, it left obiter passages by Lord Reed that were open to more favourable interpretation. The present case tried to argue, as per Sir Stephen Richards, "that the approach set out in Hesham Ali is equally applicable to Part 5A of the 2002 Act, so that section 117C(6) is a relevant and important consideration in the Article 8 analysis but it does not displace the proportionality assessment to be made by the tribunal on the facts of the case as a whole" [para 13]. This would have allowed courts and tribunals to draw a distinction between having regard to a clear statement of policy by Parliament on the one hand, and requiring the strict adherence to a statutory formula on the other.

The Judgment:

This argument has now been rejected by the Court of Appeal, which upholds the analysis of section 117C(6) in Rhuppiah. Sir Stephen Richards finds that Lord Reed's judgment in Hesham Ali relied heavily on the fact that the Immigration Rules are not law: they do not govern appellate decision-making, though they are of course a relevant consideration. In light of the 2014 Act, therefore, s.117C is more than a statement of policy: it provides a codified approach to a foreign criminal's Article 8 rights. The Court of Appeal do not find that the decision of the Upper Tribunal was affected by any material legal error, and correctly interpreted the approach to the appellant's Article 8 rights. The appeal was dismissed.

As argued in the Free Movement blog, this ruling may have clarified matters in theory but less so in practice: realistically the only discretion for judges lies in the proper construction of 'very compelling circumstances'.